Feature

The
Unfinished Revolution

Interpreting
the Oregon Constitution

By
Jack L. Landau

The
Oregon 'constitutional revolution' is by now a widely recognized
feature of the legal landscape of this state. Judges and lawyers alike
take for granted the fact that the state constitution has significance
apart from what federal courts say about parallel provisions of the federal
constitution. What is not so widely appreciated is the fact that the revolution
has remained largely unfinished. Although the courts have come routinely
to accept the independent significance of the state constitution, they
have devoted little attention to articulating a set of principles by which
they determine what the state constitution means. As a result, constitutional
law in Oregon has become, well, a mess. Different provisions commonly
have been interpreted by applying different interpretive rules with no
explanation why the rules change from case to case. At least until recently.

In
the last year, the Oregon Supreme Court has set about completing the revolution
that it started. In a series of important decisions, the court has acknowledged
the inconsistency of its prior cases and apparently has identified a solution:
Henceforth, the courts of this state will construe the Oregon Constitution
to mean what its framers would have understood it to mean in 1857. What
is more, the Supreme Court declared that any prior constitutional decisions
that were decided without reference to the framers' intentions are fair
game for reconsideration and possible reversal.

This
is important news that warrants the careful attention of all judges and
lawyers in this state. Adopting a jurisprudence of original intent certainly
promises to bring a certain amount of order to the chaos that has characterized
Oregon constitutional law. But it raises significant questions about why
the court adopted that particular theory of interpretation and about whether
it in fact is a legitimate, even practicable, method of interpretation.
It also has potentially far-reaching practical consequences as to the
continuing vitality of existing law that has been developed without regard
to the intentions of the framers in 1857.

A
LITTLE BACKGROUND
In the beginning -- that is to say, before 1980 -- the Oregon courts routinely
assumed that parallel provisions of the state and federal constitutions
meant exactly the same things, even if the wording were not identical.
Thus, for example, the Oregon Supreme Court held that Article I, section
20, of the Oregon Constitution and the 14th Amendment to the United States
Constitution have identical effect, even though the wording of the two
clauses is quite different. Similarly, the court held that the state and
federal takings clauses 'are identical in language and meaning,'
even though they actually are not. Likewise, the court held that as to
the meaning of the state and federal prohibitions against compelled self-incrimination,
'nothing turns upon variations of wording in the constitutional clauses.'

In
essentially ignoring the state constitution, the Oregon courts followed
the practice of other state courts. Why state courts did that for so long
is not entirely clear. Some appear to have assumed that the framers of
the state constitutions intended that state provisions have the same meaning
as federal counterparts and that textual differences simply did not matter.
Others explained that, as a matter of policy, uniformity made sense. It
also should not be forgotten that, at least in the area of individual
rights, the Warren Court had articulated a federal constitutional jurisprudence
that was sufficiently protective as to render resort to state constitutional
law unnecessary.

One
scholar who, like the proverbial voice crying in the wilderness, complained
about that state of affairs was Prof. Hans A. Linde. According to Linde,
for reasons of logic and history, state constitutions should be given
not just independent significance, but primacy in constitutional analysis.
His proposed 'first things first' approach received little attention,
however.

Then
came the Burger Court, which was widely perceived as openly hostile to
the libertarian activism of the Warren Court. Scholars and judges around
the country suddenly became advocates of a 'new federalism,'
which looked to state constitutions as potential sources of resistance
to what they perceived as unacceptably conservative federal court decisions.

Meanwhile,
Prof. Linde became Justice Linde, and, the Oregon Supreme Court soon became
a leader in the state constitutional revolution. In such cases as State
v. Clark, the court spelled out its obligation to consider state constitutional
arguments before even addressing arguments concerning parallel provisions
of the federal constitution. The revolution took surprisingly little time.
Within a brief five years of Clark, one justice could proclaim that 'I
should like to think that the Oregon Constitutional Revolution has been
accomplished.'

Unfortunately,
what was accomplished was only the beginnings of a revolution. Certainly,
the court by the mid-1980s had exhibited a commitment to the first-things-first
approach to constitutional analysis. But the court never tackled the tougher
question of precisely how it intended to engage in that analysis. The
court simply started interpreting the state constitution, provision by
provision, with no apparent attention to whether the way it did so made
any sense.

In
consequence, different provisions ended up being interpreted in different
ways. For example, the court held that whether a statute violates an individual's
right to bear arms, as guaranteed in Article I, section 27, depends on
what the framers would have understood the constitution to mean in 1857.
Thus, whether a statute prohibiting the possession of a billy club is
constitutional depends on whether the framers would have understood the
constitution to protect the possession of such a weapon. Similarly, whether
a local ordinance prohibiting the possession of assault rifles is constitutional
depends on whether the framers would have understood the constitution
to protect that 'sort' of weapon.

In
contrast, whether a statute violated an individual's rights to freedom
of expression, as guaranteed in Article I, section 8, depends on an entirely
different method of analysis that is, somewhat ironically, based on a
law review article concerning the proper interpretation of the First Amendment
to the federal Constitution. That method of analysis, first articulated
in State v. Robertson, was adopted by the Oregon Supreme Court without
any reference to whether it was what the framers would have intended.
Similarly, in determining what constitutes a 'search' within
the meaning of Article I, section 9, of the Oregon Constitution, Oregon
courts employ a method of analysis first proposed in a law review article
concerning the Fourth Amendment, without consideration of whether that
method of analysis comports with what the framers of the Oregon Constitution
would have intended.

In
some cases, the Oregon Supreme Court simply made constitutional law in
accordance with what it perceived as good policy. The prime example of
that approach to constitutional 'interpretation' is Lloyd Corporation
v. Whiffen, in which the court held that private citizens have a constitutional
right to gather initiative petition signatures on private shopping center
property. The court acknowledged that nothing in the state constitution
said anything about such a right. It simply declared that, because of
the importance of the initiative right, it seemed appropriate to imply
the right to collect signatures on private property. There was no reference
to what the framers of the constitutional provisions reserving the initiative
right in the first place intended.

Meanwhile,
notwithstanding the supposed success of the state constitutional revolution,
the Oregon courts continue to rely on federal court constitutional decisions
to a surprising degree. Sometimes, the courts merely refer to federal
authorities as 'persuasive.' But in other cases, the courts
assume the identity of parallel state and federal constitutional provisions,
because the parties have not suggested any distinct interpretation of
the state provision. On the surface, that seems harmless enough. Yet it
is difficult to reconcile with earlier decisions that emphasize the obligation
of the courts to address state constitutional arguments first, even when
the parties do not make them. Finally, in some cases, the courts still
conclude--without any pretense of declaring that federal law is merely
persuasive--that state and federal constitutional provisions are in effect
interchangeable.

Then
there are cases that involve the interpretation of provisions that were
enacted by initiative. In some cases, the courts treat those provisions
as they ordinarily treat statutes, applying the sequential, three-step
analysis of PGE v. Bureau of Labor and Industries. The courts do not do
so consistently, however. In other cases, the courts construe provisions
adopted by initiative as if they had been ratified as part of the original
constitution.

ORIGINS
OF ORIGINALISM
Pretty clearly, this is a confusing state of affairs. Why is the interpretation
of some provisions controlled by the framers' intentions, but not others?
Why in some cases does the text of the constitution limit its construction,
but not in others? Why in some cases are the courts constrained by the
arguments that the parties make, but not in others? The courts have yet
to explain.

In
1992, the Supreme Court hinted that it was aware of those problems and
that it intended to do something about them. In Priest v. Pearce, it began
to characterize its constitutional construction analysis in terms of a
three-part analysis. The court declared that the meaning of the Oregon
Constitution should be determined by reference to the text of the constitutional
provision at issue, its enactment history, and the relevant case law.
The court appeared to suggest that its objective was the ascertainment
of the meaning of the provision intended by its framers, although it did
not say so explicitly. The court also appeared to suggest that the Priest
analysis would apply to all provisions of the Oregon Constitution, perhaps
signaling an intention to approach constitutional construction in a more
coherent fashion.

The
courts, however, applied Priest only sporadically. Whiffen, it should
be recalled, was decided after Priest. Free speech cases continued to
be decided by application of the Robertson analysis. Search and seizure
cases continued to be decided without reference to the intentions of the
framers. Takings cases continued to be decided on the assumption that
state and federal takings clauses mean the same thing.

All
that changed last year with the Supreme Court's decision in Stranahan
v. Fred Meyer. In that case, the court openly embraced a jurisprudence
of original intent. In fact, striking a slightly revisionist note, the
court proclaimed that such had always been the proper method of constitutional
analysis in this state. Moreover, the court announced that it was willing
'to reconsider a previous ruling under the Oregon Constitution whenever
a party presents to us a principled argument suggesting that, in an earlier
decision, this court wrongly considered or wrongly decided the issue in
question.' The court declared that it would give particular attention
to arguments that prior case law demonstrated a failure to follow its
'usual paradigm' for ascertaining the intended meaning of a
constitutional provision. And, true to its declaration, that is precisely
what the court did.

At
issue in Stranahan was whether a private citizen had the right to collect
initiative petition signatures at a Fred Meyer department store. Of course,
in Whiffen, the court already had decided that citizens have the right
to collect initiative petition signatures at shopping malls. The court,
however, concluded that Whiffen had been wrongly decided. Why? Because
the case departed from the court's 'established methodology for ascertaining
the intended meaning of a constitutional provision.' According to
the court, nothing in either the text or the enactment history of the
constitutional provisions concerning the rights of initiative and referendum
suggests that the people intended to create a right to collect petition
signatures on private property. Whiffen was overruled and the controversial
right to collect signatures on private property eliminated, at least insofar
as it had been based on the initiative and referendum provisions of the
state constitution.

Stranahan
was no aberration. In Smothers v. Gresham Transfer, Inc., the court reaffirmed
its commitment to a jurisprudence of original intent as well as its intention
to reexamine and reject whole lines of case law that cannot be reconciled
with that method of analysis.

In
Smothers, the court addressed the constitutionality of an exclusive remedy
provision of the state's workers' compensation statutes. The plaintiff
had been injured at work, but his workers' compensation claim was denied
on the ground that he had failed to demonstrate that his work was the
major contributing cause of his condition. When he filed a negligence
claim against his employer, the trial court dismissed it on the ground
that the claim was subject to the exclusive remedy provision of ORS 656.018,
which provides that the exclusive remedy for any work-related injury is
the workers' compensation system, even if the claim has been found to
be noncompensable. The plaintiff appealed, arguing that the exclusive-remedy
statute violated his rights under Article I, section 10, of the state
constitution, which guarantees that 'every man shall have remedy
by due course of law for injury done him in his person, property, or reputation.'

The
Supreme Court agreed. It began by reiterating its adherence to a jurisprudence
of original intent. The goal, the court said, is 'to understand the
wording [of the constitution] in the light of the way that wording would
have been understood and used by those who created the provision.'
What did the framers mean when they guaranteed every man a remedy by due
course of law? To answer that question, the court exhaustively examined
the historical sources of Article I, section 10, from the Magna Carta,
through the commentaries of Lord Edward Coke and William Blackstone, to
the remedies clauses of late eighteenth- and early nineteenth-century
state constitutions.

In
a nutshell, the court held that the framers intended the remedies clause
to provide substantive protection for certain kinds of rights--'absolute'
rights, those relating to injury to person, property, or reputation--that
existed at the time of the ratification of the constitution in 1857. They
did not intend necessarily to freeze in place all rights that existed
as of 1857, the court held. The legislature may abolish claims that existed
at the time of ratification. But if it does so, it must provide a substitute
remedy for the same injury.

Applying
that analysis to the facts of the case, the Smothers court concluded that
the exclusive remedy provision of the workers' compensation statutes in
fact did violate the remedies guarantee. The court reasoned: (1) As of
1857, employees had a right to sue their employers for unsafe work conditions,
and they had to prove those claims by satisfying only a 'contributing
cause' standard; (2) as of 1995, when ORS 656.018 was enacted, workers
who could not satisfy a tougher 'major contributing cause' standard
had no remedial process available to them for their work-related injuries;
(3) therefore, as to those workers, the exclusive-remedies provision violates
the remedies clause.

The
court acknowledged that, in the previous 65 years, it had spelled out
the meaning of the remedies clause in very different terms. Then, as in
Stranahan, it overruled those cases that could not be reconciled with
what it had determined to be the intended meaning of the constitution.

Most
recently, in State v. Fugate, the Supreme Court again employed an originalist
approach to constitutional interpretation. Fugate was a criminal case
in which the defendant challenged, on ex post facto grounds, the constitutionality
of the retroactive application of a statute that provided that merely
because evidence may have been seized in violation of a statute did not
necessarily mean that the evidence must be suppressed. The court examined
the history of the state ex post facto clause to determine what its framers
would have intended. The court noted that the clause was taken from the
Indiana Constitution of 1851, which, in turn, had been taken from the
Indiana Constitution of 1816. In 1822, the Indiana Supreme Court interpreted
the ex post facto clause of the 1816 constitution and, in so doing, also
cited Calder v. Bull, a 1798 United States Supreme Court decision that
held that statutes that alter the rules of evidence in ways that make
criminal convictions easier are prohibited by the federal ex post facto
clause. The Oregon Supreme Court reasoned that, because both the Indiana
and United States Supreme Court decisions were 'available' to
the framers, it is likely that the framers would have understood those
decisions to describe the effect of Oregon's ex post facto clause, as
well. The state objected that the federal courts have since abandoned
that portion of Calder. The court dismissed the objection, commenting
that, whatever the merits of the state's characterization of current federal
law, the determinative question is what the framers would have understood
the law to be in 1857.

QUESTIONS
ABOUT APPLYING ORIGINALISM
Thus, there can be little question that the Supreme Court is now committed
to an originalist agenda. Why the court has chosen to do so, is another
matter. Certainly, the court has not attempted to justify its interpretive
choice on the basis of the framers' intentions. That is to say, the court
has yet to establish that originalism is the method that the framers in
1857 would have wished the courts to employ. In fact, some scholars suggest
that prevailing practices of statutory and constitutional interpretation
in the eighteenth and nineteenth centuries make it unlikely that the framers
would have understood that their intentions would control future judicial
decisions. Nor can precedent alone justify the court's choice, for, as
we have seen, the Oregon courts have employed a wide variety of interpretive
approaches over the years.

This
is not a matter of idle, academic curiosity. Originalism is not the only
possible way of approaching the interpretation of a constitutional text,
and methods of interpretation can directly affect case outcomes. In fact,
originalism has come in for a fairly widespread lambasting by constitutional
scholars in the last century. Thus, it would seem appropriate at this
early juncture for the bench and bar to entertain some questions about
the Oregon Supreme Court's approach to constitutional interpretation.
Several questions easily come to mind concerning its legitimacy and its
practical application.

First,
whose intentions are to be consulted? In theory, if anyone's intentions
should be controlling, it should be the people's. After all, it is the
people, not the attendees of the Constitutional Convention of 1857, who
ratified the constitution. The problem, of course, is that it is very
difficult to reconstruct what 'the people' probably had in mind
in 1857. We do have some documentary sources from the Convention that
shed light on what the framers were up to. So the courts are inclined
to fudge a bit and use that evidence as sort of surrogate evidence for
what the people had in mind. In some early cases, the Oregon Supreme Court
acknowledged the problem, commenting that evidence of what went on at
the convention is interesting, but not necessarily conclusive evidence
of what the people intended. Later decisions, however, tend not to be
quite so fastidious.

Second,
can we accurately reconstruct the framers' intentions? History, particularly
the history of ideas, is a notoriously difficult endeavor. Answers involve
sifting through sketchy, usually circumstantial, evidence and require
the exercise of informed judgment. Even then, trained historians frequently
disagree about the proper interpretation of the evidence. A brief examination
of the current debate about the intended meaning of the Second Amendment
to the federal constitution bears out the point. Experts have disagreed--sometimes
quite acrimoniously--about what the framers intended that provision of
the federal constitution to mean, while new evidence and explanations
emerge almost constantly. Closer to home is the Supreme Court's opinion
concerning the intended meaning of the remedies clause in Smothers. While
it certainly relies on a thorough analysis of the historical sources,
the fact remains that others have carefully examined the same sources
and have come to very different conclusions about what the framers intended.

A
subsidiary concern is whether--even assuming that it is theoretically
possible to reconstruct the past with any reliability--there is actually
a shared, collective intention for us to reconstruct. Some scholars suggest
that the notion of a shared understanding is simply another fiction, that,
in fact, the framers actually had a variety of different and sometimes
inconsistent understandings of what they accomplished in drafting the
constitution. The Oregon case law apparently takes the existence of such
a shared understanding for granted, when the point is at least fairly
debatable.

Third,
do we describe what the framers actually intended or what they could have
intended? Smothers, for example, relies on an elegantly crafted analysis
of historical sources from the Magna Carta to the present. Is the court
saying that the pioneer framers actually were aware of that history? Or
is the court employing a fiction as to what a law-trained person in possession
of all relevant sources, in theory, would have understood at the time?
Similarly, in Fugate, the court referred to an 1822 Indiana Supreme Court
decision that was 'available to the framers of the Oregon Constitution.'
Do we know whether that is true? Does it matter? Or, again, is it just
that theoretically the decision was 'available' to the framers
at the time?

Fourth,
there is the very difficult problem of how to describe the significance
of the historical evidence that we find. This is the problem that scholars
identify as the problem of 'levels of generality.' Any historical
moment or idea can be described at a variety of different levels of generalization.
The 39th Congress, for example, drafted the Fourteenth Amendment to the
federal constitution in response to the southern 'black codes'
that deprived blacks of certain political rights. Some scholars have argued
that that evidence shows that the framers were concerned only with protecting
blacks from being deprived of a narrow set of political rights. Others
suggest that the evidence constitutes only an example of a larger concern
with the protection of civil rights generally.

The
Oregon Court of Appeals encountered a similar same problem in attempting
to determine whether the right to bear arms provision of Article I, section
27, includes a right to possess assault rifles. The historical evidence
showed that, by 1857, some repeating Winchester rifles had made their
way to the Oregon Territory. What is the significance of that historical
fact? The majority said that a Winchester simply is not the same 'sort'
of weapon as a modern-day assault rifle. The dissent said that, as a repeating
rifle, it was indeed the same 'sort' of weapon that the framers
intended to protect. History provided no 'correct' answer. It
rarely does.

Finally,
there is the question how far the Supreme Court intends to go with its
reexamination of Oregon constitutional case law. Substantial areas of
existing constitutional law are not based on a jurisprudence of original
intent. And shifting to such a method of analysis could mean big changes
in state constitutional law as we currently know it.

Take
the law of free expression. Currently, it is based on State v. Robertson,
which employs a libertarian approach to free expression that is perhaps
among the most protective in the nation. Shifting to a jurisprudence of
original intent could change all that. It is widely--although certainly
not universally--believed that the framers of free expression guarantees
in the eighteenth and nineteenth centuries intended to prohibit only prior
restraint, that is, before-the-fact censorship, not after-the-fact punishment
of speech. Indeed, several years before it handed down the Robertson decision,
the Oregon Supreme Court itself examined the historical record and suggested
that that was what the framers probably intended the Oregon Constitution
to mean. Will the courts revert to that interpretation of the constitution?

In
a similar vein, part of the same Bill of Rights in the 1857 constitution
that includes the privileges and immunities clause of Article I, section
20, was a provision that prohibited any 'free negro or mulatto'
from taking up residence, holding any real estate, entering into contracts,
or maintaining any suit in this state. If that is so, is it likely that
the framers would have understood Article I, section 20, to prohibit discrimination
on the basis of race?

Still
another example: Current takings law is largely based on twentieth- century
Fifth Amendment case law, which has never examined the intended meaning
of the federal takings clause. Will current land use restrictions pass
state constitutional muster if the test is framed in terms of nineteenth
century conceptions of property rights?

Clearly,
the Oregon Supreme Court's new--or perhaps renewed--commitment to a jurisprudence
of original intent has significant implications. While it signals a welcome
desire to apply a consistent, coherent approach to constitutional interpretation,
it also raises a number of questions about the legitimacy of the particular
approach that the court apparently has selected. In addition, it raises
the possibility that a substantial body well-established law could be
up for grabs, depending on how the courts choose to describe the intentions
of the framers. Judges and lawyers--indeed, all Oregonians--should watch
very carefully the new course that the unfinished constitutional revolution
has taken.